OZS - [2021] NSWCATGD 1

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: OZS [2021] NSWCATGD 1
Hearing dates: 12 January 2021
Date of orders: 12 January 2021
Decision date: 12 January 2021
Jurisdiction: Guardianship Division
Before: J Moir, Senior Member (Legal)
Dr S Williams, Senior Member (Professional)
L Stewart, General Member (Community)
Decision:
The application for a guardianship order is dismissed after hearing.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – subject person paralysed on her right side due to stroke - use of bed rails in aged care – whether use of bed rails constitutes “physical restraint” – Quality of Care Principles 2014 (Cth) - bed rails used to prevent subject person from falling out of bed – subject person at high risk of injury should she fall out of bed – bed rails not used to control behaviour – use of bed rails not a “physical restraint” - no need for a guardian to be appointed – application dismissed.

Legislation Cited:
Aged Care Act 1997 (Cth)
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2)
Quality of Care Principles 2014 (Cth), ss 4, 15F, 15G

Cases Cited:
IF v IG [2004] NSWADTAP 3
JFL [2020] NSW CAT GD 36
SZH [2020] NSWCATGD 28
VZM [2020] NSWCAT GD 25

Texts Cited:
Nil

Category: Principal judgment
Parties:
003: Guardianship Application
OZS (the person)
CAS (applicant)
GYN (joined party)
Public Guardian
Representation: Nil

File Number(s): NCAT 2019/00166167
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

GUARDIANSHIP APPLICATION

Background

OZS is an 86-year-old widowed woman of Italian background who lives in a nursing home at Inner West Sydney. OZS has two children; CAS and GYN. OZS is said to have had a stroke, and to have dementia.
On 1 August 2019_ the Tribunal made a financial management order appointing CAS as OZS’ financial manager. On the same date, a guardianship application was dismissed.
On 5 November 2020 the Tribunal received a guardianship application from CAS stating that he understood that a guardian is required to consent to the use of bed rails for OZS’ safety and proposing that he be appointed as guardian.
These Reasons for Decision arise from the hearing of this application.

The hearing

The hearing was held by telephone and the Tribunal spoke with CAS, GYN, and Mr Z, Quality and Safety Coordinator at the nursing home. The Tribunal was told that OZS’ disability is such that she was unable to participate in the hearing and this was consistent with the medical evidence. On this basis the Tribunal proceeded with the hearing without OZS’ involvement.

What did the Tribunal have to decide?

The questions which had to be decided by the Tribunal were:

Is OZS someone for whom the Tribunal could make an order because she has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading OZS

Details

AGLC: OZS [2021] NSWCATGD 1
Case: [2021] NSWCATGD 1
Decision Date: 12 January 2021

CaseChat Overview and Summary

The case involves an application for a guardianship order concerning an elderly woman, referred to as the subject person, who is resident in an aged care facility. The subject person suffered a stroke resulting in paralysis on her right side and is at high risk of injury if she falls out of bed. The respondent, the subject person's son, applied for a guardianship order on the basis that the facility's use of bed rails to prevent her from falling constituted "physical restraint" under the Guardianship and Administration Act 2000 (Qld). The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The primary legal issue before the tribunal was whether the use of bed rails in the subject person's care constituted "physical restraint" under the Act. The tribunal needed to determine if the bed rails, which were used to prevent the subject person from falling out of bed, constituted a form of physical restraint that required the appointment of a guardian. The tribunal also needed to consider the Quality of Care Principles 2014 (Cth) in determining whether the use of bed rails was justified to prevent the subject person from coming to harm.

The tribunal found that the use of bed rails in this case did not amount to "physical restraint" within the meaning of the Act. The bed rails were used to prevent the subject person from falling out of bed, not to control her behaviour. The tribunal considered that the use of bed rails in this context was a necessary measure to prevent the subject person from coming to harm, given her high risk of injury if she were to fall out of bed. The tribunal concluded that there was no need for a guardian to be appointed and dismissed the application.

The tribunal's final order was that the application for a guardianship order was dismissed after hearing. The tribunal found that the use of bed rails in the subject person's care did not constitute "physical restraint" under the Act and did not require the appointment of a guardian. The tribunal considered that the use of bed rails was a necessary measure to prevent the subject person from coming to harm and was consistent with the Quality of Care Principles 2014 (Cth).

Orders

Orders of the court

The application for a guardianship order is dismissed after hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	OZS [2021] NSWCATGD 1
Hearing dates:	12 January 2021
Date of orders:	12 January 2021
Decision date:	12 January 2021
Jurisdiction:	Guardianship Division
Before:	J Moir, Senior Member (Legal) Dr S Williams, Senior Member (Professional) L Stewart, General Member (Community)
Decision:	The application for a guardianship order is dismissed after hearing.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – subject person paralysed on her right side due to stroke - use of bed rails in aged care – whether use of bed rails constitutes “physical restraint” – Quality of Care Principles 2014 (Cth) - bed rails used to prevent subject person from falling out of bed – subject person at high risk of injury should she fall out of bed – bed rails not used to control behaviour – use of bed rails not a “physical restraint” - no need for a guardian to be appointed – application dismissed.
Legislation Cited:	Aged Care Act 1997 (Cth) Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2) Quality of Care Principles 2014 (Cth), ss 4, 15F, 15G
Cases Cited:	IF v IG [2004] NSWADTAP 3 JFL [2020] NSW CAT GD 36 SZH [2020] NSWCATGD 28 VZM [2020] NSWCAT GD 25
Texts Cited:	Nil
Category:	Principal judgment
Parties:	003: Guardianship Application OZS (the person) CAS (applicant) GYN (joined party) Public Guardian
Representation:	Nil
File Number(s):	NCAT 2019/00166167
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.